In a recent article in The Atlantic, Jeffrey Rosen warns against invoking the constitutional "right to dignity" when striking down bans on same-sex marriage. He argues that constitutionalizing "broad abstractions like dignity – now celebrated by liberals for what it means to gay rights – may lead to results in the future that liberals come to regret," like striking down gun-control laws and other progressive legislation.
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Rosen raises an important issue in his article: how best to apply the underlying principles of the constitution to evolving modern realities. We face a similar challenge in applying the eternal principles of halakha (Jewish law) to modern life in framing the gay-marriage debate within our community. Yet, there is one crucial difference between secular law and halakha: the former is based on rights, while the latter is based on responsibilities.
Justice Anthony Kennedy, as quoted in Rosen's article, invokes "the right to dignity," with rulings based on the 14th amendment to the constitution as precedent to potentially uproot bans on gay marriage. Similarly, two halakhic principles have been invoked in the Talmud (Oral Law) as basis to potentially uproot laws laid out in the Torah: "Kavod Habriyot" (literally "honor of the creature," meaning human dignity) and "B’Tzelem Elokim" (that human beings are created in the image of G-d).
Rabbi Aharon Lichtenstein, the contemporary Torah sage whose recent passing is keenly felt, while noting the similarities between these principles, draws a distinction between the secular term "human dignity" and Kavod Habriyot. “Unlike other cultures, we speak not of 'the dignity of MAN,' but rather of 'briot,' creatures, relating to the human being as a creature fashioned by the Almighty.” Our dignity stems from our being created B’Tzelem Elokim (in the image of G-d).
Rav Aharon concluded that specifically because contemporary halakhic authorities have the potential to apply the principle of Kavod Habriyot in too general a manner, they shy away from using it entirely. However, he warns, there is a danger inherent in shying from its use:
“If indeed Kavod Habriyot should, after proper consideration of all factors, halakhically overcome the prohibitions with which it conflicts, but due to fear (of the long-term ramifications of such a ruling) the posek (halakhic authority) does not adopt such a ruling, does this not constitute a distortion of halakha?”
Rav Aharon aptly describes the tightrope that a halakhic authority walks. On the one hand, he must consider the danger of establishing precedent for unintended and potentially dangerous applications of halakha. On the other hand, if after proper deliberation of potential outcomes, he still avoids applying the halakhic principle in an effort to play it safe, then that is cowardice and a dereliction of responsibility.
Blu Greenberg, a well-known author on modern Judaism and women’s issues, has been widely quoted as saying, “Where there is a rabbinic will, there is a halakhic way.” The simple meaning of this statement seems to be that the halakhic authority draws the target and shoots the arrow to achieve the desired result. However, there is a complexity in Greenberg’s statement: To what extent does the desire for a good outcome influence one's ruling?
G-d created us as subjective beings to manifest our unique contributions to an overall redemptive process, of good overcoming evil. At the same time, we operate within the boundaries of a tradition that represents our only partial understanding of Divine will. The inherent tension when combining this incomplete understanding with our desire to promote good is often an impossible balancing act.
Working within this tension, can I, an Orthodox Jew, follow in the vein of Justice Kennedy – who expanded the "right to dignity” to designate a homosexual union as marriage – and apply the Jewish value of Kavot Ha'briot, human dignity, to the gay-marriage debate? As I empathize with the plight of my fellow human beings, in this case the LGBT community, I have no answer to why G-d created people with desires that are proscribed by the Torah. I can only imagine the pain of a life without the intimacy I share with my wife. My good will prompts me to find a solution within halakha that favors their needs.
Yet, I cannot find a solution in the Talmudic phrase, “Kavod Habriyot is great in that it overrides a Biblical prohibition” (Tractate Berakhot, page 19b), for my religious tradition holds that a union is only between a man and a woman, who have the responsibility to procreate.
Nonetheless, I do believe the legal system needs to afford partners in a committed relationship the equivalent status and protection of married couples.
Rav Aharon understands that Kavod Habriyot “is a value assessment, and the fact that it ‘overrides a biblical prohibition’ is a result of this, rather than a guideline for action.” There are times when, despite our best intentions and desire to ease pain and relieve suffering, to correct an injustice or to do good, that we can’t. Our job then is to be there compassionately, for the other. We should feel that it’s not enough and it’s not. But, holding another’s pain is sometimes all we can do.
Rabbi Yehoshua Looks is COO of Ayeka, a teacher and a freelance consultant to non-profit organizations. The opinions expressed are personal and not representative of any organization with which he is associated.